Brexit and the environment

Published Wednesday, August 8, 2018

A House of Commons Library Briefing paper discussing current environmental law and policy in the UK and in the devolved nations; preparations for Brexit and potential impacts of Brexit; and actions and proposals being taken at a domestic level for both the UK and each of the nations in the UK.

Current environmental law and policy

Environmental issues are often transboundary in scope. As such environmental principles, laws and policies in the UK originate from a mesh of international agreements, EU legislation and domestic law. A number of international agreements have been ratified by both the UK and the EU, which in turn are implemented through a mixture of EU and UK legislation. As the environment is a devolved policy competence, the devolved Administrations also have powers to make their own primary and secondary legislation within the environmental sphere and have increasingly taken divergent legislative and policy routes in many areas.

Brexit negotiations

All EU environmental laws, principles and relevant enforcement mechanisms will continue to apply to the UK up until exit day (29 March 2019) and throughout the provisional implementation period to 31 December 2020 if the Withdrawal Agreement is agreed and ratified.

Article 50 withdrawal negotiations are ongoing so the exact nature of future environmental policy and legislation in the UK is not yet known. The EU has consistently called for a level playing field, including through environmental measures and practices. The Government’s July 2018 White Paper on the future relationship between the UK and the EU committed to maintaining high environmental standards and proposed the agreement of non-regression of environmental standards between the EU and the UK.

No deal?

Both the EU and the UK Government are also preparing for a no deal scenario. Environmental commentators have raised concerns regarding this outcome, including in relation to losing mechanisms for co-operating with the EU on transboundary environmental issues; and a potential gap in governance between exit day and the date any replacement UK-based governance arrangements are established. The Prime Minister has stated that the UK would not reduce its environmental standards in the event of a no deal scenario.

Potentialimpacts of Brexit

Each area of environmental law is likely to be affected differently by Brexit – this paper does not examine individual subjects in detail. Overall, the Government has committed to continuing uphold its international environmental obligations and, in accordance with the European Union (Withdrawal) Act 2018, to copy over all environmental EU law into domestic law from exit day.

Questions remain about how these Government commitments will be discharged in practice. In relation to the rollover of EU law, Defra has estimated that 95 items of secondary legislation would be needed to complete the conversion of “Defra-owned” EU law into UK law. However, commentators have identified some areas of environmental legislation which pose challenges for a direct conversion. For example, where existing regimes (such as emissions trading or chemicals regulation) are intertwined with EU institutions and reliant on member state co-operation, mutual obligations and relationships. As such, the future of the UK’s participation in the EU’s emission trading system and REACH chemicals regulation remains unclear.

UK post-Brexit

There has been considerable debate over the future of EU environmental principles and the loss of the role of EU institutions in monitoring and enforcing environmental law following Brexit. In response to concerns raised, the Government held a consultation on environmental principles and governance from May-August 2018. It proposed the creation of a new statutory independent environmental watchdog to hold government to account on its environmental obligations; and options for establishing environmental principles in the UK. The consultation applied to England only. Scotland and Wales are both considering governance arrangements, with further announcements from Ministers expected in coming months.

Late-stage amendments to the European Union (Withdrawal) Act 2018 put a number of the consultation proposals on a statutory basis, including: the establishment of a statutory environmental watchdog with enforcement powers (including legal proceedings if necessary) against Government ministers; a list of environmental principles; and putting a duty on Government ministers to have regard to a policy statement relating to the application and interpretation of the listed environmental principles. The Act requires the Government to publish a draft Bill on this by 26 December 2018.

In addition, the Prime Minister announced in July 2018 that the Government would introduce the “first Environment Bill in over 20 years” which would include clean air provisions. This claim was challenged by the Chair of the Environmental Audit Committee, citing more recent environmental legislation such as the Marine and Coastal Access Act 2009. No further details on the content or scope of this Bill are available at the time of publication of this paper.

Devolution and Brexit

While the environment is a largely devolved subject, it operates within an EU-based framework of legislation. The prospect of an EU exit has highlighted tensions between the UK Government’s ambition to maintain a coordinated approach to transboundary environmental issues and the desire by the devolved nations to maintain autonomy. This was apparent in debates on the then European Union (Withdrawal) Bill. The Scottish Parliament refused to approve a legislative consent motion for it, in relation to both environmental policy and other commons framework areas. In April 2018, the UK and Welsh governments entered into an Intergovernmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks which identified a number of environmental areas where a common framework would be needed with legislative underpinning.

The Scottish Government has committed to maintaining “high” ambitions for the environment following Brexit. The Welsh Government has stated that Brexit must not be used to dilute or row back on environmental standards. Northern Ireland has unique environmental challenges created by Brexit because of its border with the Republic of Ireland, which will change from being an internal to an external EU border. Concerns have been raised about whether different regulatory regimes and standards would apply across the border. The draft Withdrawal Agreement makes provision for environmental protection, under the Protocol for Northern Ireland, but the text is yet to be agreed.